Pincock v. McCoy

• Decision Date: 05 October 1929
• Docket Number: 5285
• Parties: HENRY D. PINCOCK, Appellant, v. M. S. MCCOY, Respondent
• Court: Idaho Supreme Court

281 P. 371

48 Idaho 227

HENRY D. PINCOCK, Appellant, v. M. S. MCCOY, Respondent

No. 5285

Supreme Court of Idaho

October 5, 1929

NEGLIGENCE-LIABILITY OF OWNER OF BUILDING TO LICENSEE-POLICE OFFICER.

1. Owner of building held not liable to licensee for bodily injuries sustained in falling into open hatchway or driveway connected with and at rear of building.

2. One on premises by invitation, express or implied, is "invitee," as to whom owner of premises must exercise reasonable care to prevent injury.

3. One on premises merely by permission or toleration is mere "licensee," as to whom owner owes no greater duty than to prevent wilful and wanton injury.

4. Police officer, who in emergency enters premises in discharge of duty, is mere licensee, to whom owner or occupant of premises owes no greater duty than to refrain from infliction of wilful and intentional injury.

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. C. J. Taylor, Judge.

Action for damages for personal injuries. Judgment for defendant. Affirmed.

Judgment affirmed. Costs to respondent.

B. H Miller, for Appellant.

In the instant case Pincock was engaged in doing something of a public nature and in which McCoy, the property owner, as a good citizen, was interested and concerned.

"We think that the leaving of the hatchway in an unguarded and unprotected condition by the defendant, as shown by the evidence, and the failure to have any light in the yard by which its condition could be seen, was such negligence as rendered it liable for the injury which was caused thereby. While the owner or occupant of premises is not an insurer of them against accidents from their condition, still, so far as he is able to do so by the exercise of ordinary care and vigilance, he is bound to keep them in such a condition that persons who are rightfully using them will not be injured by any insecurity or insufficiency for the purpose for which they are put. If such owner or occupant fails in his duty in these regards, he becomes a wrongdoer, and as such will be liable for any injury which results as a natural consequence from his misconduct, and which might reasonably have been anticipated as likely to occur as a natural and probable result thereof."

The law and pleading in the instant case was taken and adopted from Lowe v. Salt Lake City, 13 Utah 91, 57 Am. St. 708 44 P. 1050, and it is for that reason that we especially commend it to the court's attention.

Wm. P Hemminger, for Respondent.

"The rule is well settled that an owner of premises owes to a licensee no duty as to the condition of such premises, unless imposed by statute, save that he should not knowingly let him run upon a hidden peril, or wantonly or wilfully cause him harm. The licensee enters upon the premises at his own risk and enjoys the license subject to its concomitant perils." (29 Cyc., pp. 449, 450.)

The complaint in this case shows on its face that the appellant was a licensee and that he went on the premises of the respondent, not under any prearranged scheme but as the result of an extraordinary and unforeseen circumstance and the cases uniformly hold that officers who enter under these circumstances may be considered no more than licensees. This being the case the respondent owed the appellant no duty of keeping the premises in a safe condition.

BUDGE, C. J. Givens, T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.

OPINION

BUDGE, C. J.

Action by appellant to recover general and special damages on account of bodily injuries by him sustained in falling into an open hatchway or driveway connected with and at the rear of a building owned by respondent. The allegations in appellant's complaint are to the effect that at the time of the accident he was a deputy sheriff, and on the night of February 24, 1927, while attempting to make an arrest for a public offense being committed in his presence, fell into the open, unguarded and unprotected hatchway or driveway at the rear of the building owned by respondent, breaking a leg and severely bruising him about the head and shoulders. Negligence on the part of respondent in failing to place guards or railings along the driveway or hatchway or to cause the same to be properly and sufficiently covered, and a duty on his part so to do in order to prevent injury to anyone rightfully and lawfully on said premises are alleged as grounds for recovery by appellant. A general demurrer to the complaint was filed by respondent, which the court sustained, and the action was subsequently dismissed for failure of appellant to plead further. From the judgment of dismissal this appeal has been prosecuted.

As aptly stated in appellant's brief: The only question involved is whether or not the complaint states facts sufficient to constitute a cause of action against the respondent, that is, whether, under the circumstances, there is a liability on the part of respondent to respond in...